[Introduced January 11, 2012; referred to the Committee on the
Judiciary.]

____________

A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §48-24A-101, §48-24A-102, §48-24A-103, §48-24A-104, §48-24A-105, §48-24A-106, §48-24A-107, §48-24A-108, §48-24A-109, §48-24A-110, §48-24A-111,
§48-24A-112, §48-24A-113 and §48-24A-114, all relating to
creating the Paternity Justice Act of 2012; providing short
title; making legislative findings and declarations; providing
definitions; permitting a motion to vacate judgment of
paternity and when it may be granted; appointing guardian ad
litem for child; providing for genetic testing procedures to
aid in determination of paternity; establishing who pays the
costs of genetic testing; setting forth when an order vacating
judgment of paternity is not to be entered; establishing what
is to be considered in vacating judgment of paternity;
modification of child support; when Bureau for Child Support
Enforcement may participate; when prior orders are to be
terminated; and providing that article does not affect
adoptions.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §48-24A-101, §48-24A-102, §48-24A-103, §48-24A-104, §48-24A-105, §48-24A-106, §48-24A-107, §48-24A-108, §48-24A-109, §48-24A-110, §48-24A-111, §48-24A-112, §48-24A-113 and §48-24A-114, all to read as follows:

ARTICLE 24A. PATERNITY JUSTICE ACT OF 2012.

§48-24A-101. Short title.

This article may be cited as the “Paternity Justice Act of
2012".

§48-24A-102. Findings and declarations.

(a) The Legislature finds and declares all of the following:

(1) DNA genetic testing is recognized as scientifically valid
by the courts of this country.

(2) In 1995, the State of West Virginia recognized the
validity of DNA testing and created a procedure for an individual
convicted of certain crimes to petition a court to reopen his or
her case.

(3) A man who is adjudicated to be the father of a child by a
court in a paternity action when he is not actually the biological
father of the child may be financially liable for up to eighteen
years of child support.

(4) The American Association of Blood Banks reported that out
of a total of more than two hundred eighty thousand cases evaluated
in 1999, almost thirty percent excluded the tested individual as
the biological father.

(5) A growing number of states now have antifraud paternity
statutes which permit an individual previously adjudicated to be
the father of a child to reopen his case and present or obtain DNA
testing if he believes he may have been erroneously identified as
the father.

(6) Respect for the judicial system is greatly diminished when
the laws do not permit the correction of an injustice.

(b) For these reasons, it is the intent of the Legislature to
enact the Paternity Justice Act of 2012.

§48-24A-103. Definitions.

For purposes of this article, the following definitions shall
apply:

(1) "Child" means the child of a previously established
father, as determined by the court in a judgment that is the
subject of a motion to vacate brought pursuant to this article.

(2) "Previously established father" means a person identified
as the father of a child in a judgment issued by the court in which
the issue of paternity was, or could have been, raised.

(3) "Previously established mother" means a person identified
as the mother of a child in a judgment issued by the court that is
the subject of a motion to vacate brought pursuant to this article.

§48-24A-104. Motion to vacate judgment establishing paternity.

Notwithstanding any other provision of law, after the
expiration of the time period within which a judgment may be
vacated pursuant to Rule 60 of the West Virginia Rules of Civil
Procedure, the previously established mother of a child, the
previously established father of a child, the child, or the legal
representative of any of these persons may move to vacate a
judgment establishing paternity if genetic testing indicates that
the previously established father of a child is not the biological
father of the child.

§48-24A-105. Vacating judgment of paternity.

(a) A court shall grant a motion to vacate a judgment
establishing paternity only if all of the following conditions are
met:

(1) The motion to vacate is filed prior to the date the child
reaches eighteen years of age.

(2) The motion is filed in a court of proper venue.

(3) The motion contains, at a minimum, all of the following
information, if known:

(A) The legal name, age, county of residence and residence
address of the child.

(B) The names, mailing addresses and counties of residence,
or, if deceased, the date and place of death, of the following
persons:

(i) The previously established father and the previously
established mother, and the biological mother and father of the
child.

(ii) The guardian of the child, if any.

(iii) Any person who has physical custody of the child.

(iv) The guardian ad litem of the child, as appointed pursuant
to the provisions of section one hundred-six of this article.

(C) A declaration that the person filing a motion to vacate a
judgment of paternity believes that the previously established
father is not the biological father of the child, the specific
reasons for this belief and a declaration that the person desires
that the paternity judgment be vacated. The moving party is not
required to present evidence of a paternity test indicating that
the previously established father is not the biological father of
the child in order to bring this motion.

(4) The court finds that the conclusions of the expert, as
supported by the evidence, are that the previously established
father is not the biological father of the child.

(b) A motion to vacate the judgment of paternity shall include
a proof of service upon the following persons, excluding the person
bringing the motion:

(1) The previously established mother.

(2) The previously established father.

(3) The Bureau for Child Support Enforcement, if services are
being provided to the child pursuant to Title IV-D or IV-E of the
Social Security Act (42 U.S.C. §301 et seq.).

§48-24A-106. Guardian ad litem for child.

A guardian ad litem shall be appointed for the child to
represent the best interests of the child in an action brought
pursuant to this article.

§48-24A-107.Genetic testing procedures to aid in determination
of paternity.

Any genetic testing used to support the motion to vacate shall
be conducted in accordance with the provisions of section one
hundred-three, article twenty-four of this chapter. The court may,
at the request of any person authorized to make a motion pursuant
to this article or upon its own motion, order genetic testing to
assist the court in making a determination whether the previously
established father is the biological father of the child.

§48-24A-108.When a court may grant motion to vacate paternity
judgment.

If the court determines that the genetic test results
conducted in accordance with the provisions of section one hundred-three, article twenty-four of this chapter exclude the previously
established father as the biological father of the child, the court
shall grant the motion to vacate the paternity judgment.

§48-24A-109. Costs of genetic testing.

The costs of genetic testing ordered pursuant to section one
hundred-seven of this article, the costs of the guardian ad litem
appointed pursuant to section one hundred-six of this article and
all court costs, including attorney's fees, shall be paid by the
nonprevailing party.

§48-24A-110.When Bureau for Child Support Enforcement may
participate.

(a) The Bureau for Child Support Enforcement may participate
in a proceeding initiated pursuant to this article only if it is
providing services as specified in Title IV-D of the Social
Security Act (42 U.S.C. §651 et seq.) at the time the motion is
filed pursuant to this article to a child who is the subject of
that motion, and may participate in the proceeding only if those
services are being provided at the time the motion is heard.

(b) When the Bureau for Child Support Enforcement participates
in a proceeding under this article, it may obtain an administrative
order for genetic tests as described in section one hundred-seven
of this article.

(c) The Bureau for Child Support Enforcement is not
responsible for the costs of genetic testing when performed in
connection with a proceeding under this article, nor is the Bureau
for Child Support Enforcement required to provide for, or assist
in, genetic testing in any case in which it is not providing
services under Title IV-D of the Social Security Act (42 U.S.C.
§651 et seq.).

§48-24A-111.When order vacating judgment for paternity not to be
issued.

A court may not issue an order vacating a judgment
establishing paternity pursuant to this article under either of the
following circumstances:

(1) The judgment was made or entered by a tribunal of another
state, even if the enforcement of that judgment is sought in this
state, unless genetic tests exclude the previously established
father as the biological father; or

(2) The judgment was made or entered in this state and genetic
tests were conducted which did not exclude the previously
established father as the biological father of the child or the
judgment resulted from a trial or contested hearing in which the
issue of paternity was, or could have been, raised and in which the
defendant was represented by counsel.

§48-24A-112.Modification of child support.

Notwithstanding any other provision of law, if the court
grants a motion to vacate a paternity judgment pursuant to this
article, the court shall modify any order for child support issued
on the basis of that previous judgment of paternity.

§48-24A-113.When prior orders to be terminated.

Except as otherwise provided in an order granting a motion to
vacate pursuant to this article, upon the granting of that motion,
all prior orders granting custody or visitation to a previously
established father may be terminated by the court. In making this
determination, the court shall consider all of the following
circumstances:

(1) The nature, duration and quality of any relationship
between the previously established father and the child, including
the duration and frequency of any time periods during which the
child and the previously established father resided in the same
household or enjoyed a parent-child relationship; and

(2) Additional factors deemed by the court to be relevant to
its determination of the child's best interests.

§48-24A-114.Article does not affect adoptions.

This article does not establish a basis for termination of any
adoption, and does not affect any obligation of an adoptive parent
to an adoptive child.

NOTE: The purpose of this bill is to provide a procedure for
vacating a judgment of paternity when there is genetic evidence
that excludes the previously established father as the biological
father of the child in question.

This article is new; therefore, strike-throughs and
underscoring have been omitted.